Excerpts from Prof. William Wagner’s Remarks
From a presentation made to Christian Law Students at Oxford University: – (United Kingdom, June 2009)
… Is God calling you this week to defend religious liberty and bring justice to this nation? If he is, will you recognize God’s Ring Tone when he calls? …My message for you tonight is that you have a destiny – And God is calling you to embrace it! ….
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From: a presentation at the United States Capitol, (Congressional Auditorium – U.S. Capitol, Washington D.C., October 2009)
DISTINGUISHED SENATORS, MEMBERS OF CONGRESS, AND HONORED GUESTS: a very warm welcome to you as we begin our final day here at the International Legal Conference on Freedom of Speech and Religion….
In 1653 an Englishman built a church and on it placed the following inscription:
In the year when all things sacred were throughout the nation either demolished or profaned, a man founded this place, whose singular praise it is to have done the best things in the worst of times…
Like the Englishman church builder we find ourselves placed on this earth at a time when all things sacred face destruction or irreverent mocking.
Government officials sought to ban placement of the American nation’s motto on this very building. But the American people, in large part because of people in this room, said NO! IN God WE still TRUST. ***
I’ve been given the privilege this morning to speak to you about the threat to religious liberty around the world. Make no mistake about it – everywhere on the earth governments increasingly seek to take that which was once in God’s realm – and re-characterized it as public policy. And so now around the globe,
• the sanctity of life,
• the sanctity of marriage,
• the sanctity of family,
• the sanctity of worship,
no longer serve as moral benchmarks against which governments measure whether laws are right or wrong, good or bad, just or unjust.
– Instead, we are told each is a public policy matter up for a debate….. Oh, and don’t bother asking to participate in the debate if you are Christian – since we must only adopt public policy informed by secular principles – without regard to any sacred or moral considerations. ***
As governments eliminate the moral element from law they remove any moral point of reference with which to measure whether their laws are right or wrong, good or bad, just or unjust. And so, as Judge Bork once observed, we continue to slouch toward Gomorrah – and with now with ever increasing speed….
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From a presentation at the Parliament of the United Kingdom, (Portcullis House – House of Commons – London, U.K., June 2009)
Distinguished members of parliament and honored guests: It is a great privilege to accept your invitation to speak here today on the importance of protecting free expression – and in particular, religious expression.
State sanctioned speech suppression inhibits a citizen from participating in the political and policy-making process. As we have heard from others this morning, it also involves state persecution of Christian citizens, precluding their serving in government at all. This is wrong.
Censuring an idea simply because the idea is informed by ancient sacred tenets prevents thousands of years of wisdom from informing the public ethic. A citizen who attempts to inform the public ethic should not be punished or prosecuted simply because the citizen’s ideas are informed by sincerely held religious truths.
In a democracy, religious liberty and freedom of expression is not needed to protect the ideas of those with whom those in power agree – it is needed to protect those who express ideas with which those holding power do not agree. Thus, the test of a functioning moral democracy is not whether the government protects speech with which it agrees – it is whether it will protect expression it abhors. Instead of censuring or punishing speech, the answer, (at least in a democracy valuing freedom), must always be more speech.
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From a presentation at the United Nations (Human Rights Council, Geneva, Switzerland, March 2007)
When religious based ideas inform the public ethic, society greatly benefits. The idea that God created humans in His image and that all human life has dignity, ended slavery and advanced the rights of women around the world. When government suppresses or punishes such expression, however, we get different results. Stalin murdered over 42 million. Mao Zedong murdered over 37 million. Hitler murdered over 20 million. And the list of atrocities goes on and on where those holding power selectively pick and choose which citizen’s views it will arbitrarily censure or punish.
Selective enforcement and punishment of a citizen’s expression sends a bitter chill throughout the citizenry in a democracy. Government suppression of religious expression is never, therefore, a healthy thing for any democratic institution valuing good governance under the rule of law. Institutional integrity cannot exist without personal virtue. Good governance and civic institutional integrity rest on the virtue of its citizens. Religious ideas support and nurture this virtue and should, therefore, always be permitted within the marketplace of ideas.
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From a presentation at the Federalist Society Annual Faculty Conference (San Francisco, California, January 2011)
Our nation’s founders knew God as the source of our liberty and rights. The Declaration of Independence, of course, reflects such a view: “We hold these truths to be self-evident, that all …are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty….” We see the promise of the Declaration in the structure and text of the Constitution. Here, we the people delegate power to the government to secure our freedom, while expressly limiting government’s ability to deprive individual liberty.
Viewed through the lens of the founders’ worldview, one discovers divinely revealed, naturally existing, objective standards. Standards which, when reflected in the Constitution, one uses to objectively measure whether a government action is right or wrong, good or bad, just or unjust and, ultimately whether it is constitutional.
The constitutional jurisprudence grounded in these deeply rooted cultural and legal traditions, customarily clashes with secular worldview jurisprudence (rejecting the inviolable standard for an evolving morally-relative approach). Thus, historically, Christians view threats to their inalienable liberty as emerging most especially from those espousing such a secular world-view. No surprise here. Policy initiatives and litigation by the secular left aggressively attack the sanctity of life, the sanctity of marriage, the sanctity of family, the origin of the universe, and the free exercise of sacred conscience, just to name a few.
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From a presentation at the Family Research Council, (Washington D.C., April 2010):
… it seems clear we must change, in a constitutional sense, how we view Islam. Islam is not merely a religion, the free exercise of which the Free Exercise Clause protects. It is also, in its mature form, a religious government, the establishment of which the Establishment Clause prohibits….
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From a Brief before the Supreme Court of Sweden (Sweden, 2005) (in a case involving the prosecution of a pastor for words he preached from the pulpit)
The Government’s Suppression of Religious Expression Unlawfully Infringed upon Fundamental Freedoms Guaranteed to Pastor Green Under Treaties Ratified by Sweden
Recognizing the perilous implications of suppressing free expression and the free exercise of religion, the European Convention on Human Rights and other international treaties ratified by Sweden, guarantee these fundamental freedoms to individuals of signatory states. Whether Swedish authorities violated treaty provisions protecting Pastor Green’s fundamental freedoms, is the matter to which we now turn.
…the ECHR guarantees the right to freedom of thought, conscience and religion, as well as the right to freedom of expression. Article 9 defines the right to freedom of thought, conscience and religion:
[T]his right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. (Emphasis added).
Article 10 of the Convention details the right to freedom of expression:
“[T]his right shall include the freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.
Likewise, the International Covenant on Civil and Political Rights (ICCPR) and its Optional Protocol, guarantees the right to free expression. In this regard, Article 19 expressly states that “[e]veryone shall have the right to hold opinions without interference,” and that “[e]veryone shall have the right to freedom of expression.” This right includes the “freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, . . . or through any other media . . . .” The right to free expression should, at a bare minimum, mean that governments of free nations have no power to restrict a citizen’s expression due to its message, its ideas, its subject, or its content. The very fact that speech may succeed in effecting social change will inevitably result in attempts by persons with vested interests to censor it. But this is the very reason for according it special protection.
The ICCPR also guarantees the free exercise of religion for individuals in signatory states. Article 18 explicitly provides that “[e]veryone shall have the right to freedom of thought, conscience and religion.” This right includes “freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.” These and other treaties recognize the universal and inalienable nature of the two imperative human freedoms in the instant case. A free and democratic society cannot remain so for long without protecting freedom of expression and the free exercise of religion.
Under the ICCPR, therefore, a country can only limit these rights by provisions “necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.” Moreover, United Nation’s precedents do not limit an individual’s inalienable right to free expression based upon an alleged emotional perception of the hearer.
Thus, a prosecution under Sweden’s statute must stop conduct threatening public safety, order, or fundamental rights—not just serve to silence dissenting religious expression. Pastor Green’s peaceful, open dialogue in the pursuit of truth is not a threat from which the public needs protection. In the instant case, Pastor Green merely expressed a religious view on a specific topic. Even a meticulous review of Pastor Green’s sermon discloses his words posed no risk to the safety of Swedish citizens or order in the community—much less infringed upon an individual fundamental right or freedom. As such, Pastor Green’s religious expression was just the kind of universal and inalienable right the signatory states intended the treaty to protect.
The Government’s Conduct Undermines Principal Precepts of
Good Governance Under the Rule of Law
Arbitrarily enforcing vague penal provisions to suppress free expression of religious beliefs, undermines good governance under the rule of law.
A principal precept of the rule of law is that it provides predictability for individuals in the conduct of their affairs. As discussed in Part I of this brief, a vague penal provision provides no such predictability and opens the door for government authorities to decide what the law means after the conduct occurs. That which is prohibited becomes clear only after a government authority selectively enforces the vague law against a citizen—based upon the authority’s own morally relative construal of the ambiguous language. To be sure, the exercise of such discretion provides the means for an authority to efficiently advance a political agenda. The insidious consequences of doing so, however, include the deterioration of fundamental democratic principles and good governance under the rule of law.
In the case of a vaguely worded criminal statute, prosecution can, without prior notice of the conduct prohibited, lead to a citizen’s loss of liberty. Moreover, if the statute vaguely regulates free expression, an ominous chill on the exercise of fundamental freedoms accompanies its promulgation. Compelled by the piercing chill of an unpredictable potential prosecution, citizens cease exercising their basic liberties. They fear to assemble, pray, worship, or even speak.
In a pluralistic society, numerous conflicting points of view exist. Historically, therefore, the perpetuation of functional democracy requires free and open debate. The prosecution of Pastor Green illustrates, however, just how efficiently government can use a vague criminal law to suppress free expression and the free exercise of religion.
The potential for unpredictable prosecution chills not just future religious expression of Pastor Green but of all other religious groups with doctrines similar to those expressed in this case (e.g., Catholicism, Judaism, Islam and others). Fearing prosecution, religious leaders in Sweden will inevitably self-censor sincerely held faith-based beliefs—and may even cease expressing anything at all.
The conviction of Pastor Green also communicates an ominous admonition to Swedish political leaders, journalists, academics, and anyone expressing a point of view different from that held by the local government authority. Given Sweden’s international reputation for protecting human rights, other nations will likely follow how Sweden ultimately resolves the instant case. The potential for a global chill on religious expression, therefore, quite possibly rests on the impending decision here.
In order to maintain comity between those of differing viewpoints and ensure public order, all governments must first recognize the universal freedoms of speech and religion. We respectfully ask this Court to preserve, by its judgment in this case, these freedoms so fundamental for the future of good governance under the rule of law.
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From a Brief Before the United States Supreme Court as Amicus in Medellin v Dretke (Washington D.C., February 2005) addressing whether the U. S. Constitution and Acts of Congress (as Interpreted by Decisions of the U.S. Supreme Court) should have supremacy over contrary decisions of the International Court of Justice (ICJ)
…. To impose the International Court of Justice’s interpretation upon the United States subordinates and alters the United States Constitution, deprives Congress of its constitutional authority to legislate, and deprives the United States of sovereignty. Neither the United States Constitution, nor the natural law of nations on which it was founded, permit such an extraordinary result. ***
The American people trust their courts to faithfully interpret the expression of the popular American will, and resolve our disputes fairly under the rule of law. It is this trust of the people, standing alone, that gives legitimacy to a Federal court’s power of judicial review. Thus, in a constitutional republic dividing power between an elected executive, an elected legislature, and an independent judiciary, the continued legitimacy of democratic institutions rests in part upon the unelected judiciary not usurping the power of politically accountable branches of government.
In this regard, the facts of this case create the potential for a constitutional crisis of epic proportions. Here, Petitioner asks an unelected Supreme Court to reject well-established American constitutional and statutory law as the rule of decision in this case. In its place, Petitioner asks this Court to deem as the Supreme Law of this Land, an unelected foreign court’s judicial promulgation. Such a course surrenders the sovereignty of the United States to the International Court of Justice and ignores the right of the people to themselves govern. Because the United States Congress is the most politically accountable branch of government, it will likely notice the impropriety of this course.
James Madison expressed his wonder at the considerable extent to which the Philadelphia Convention reached agreement on the Constitution with these words: “It is impossible for the man of pious reflection not to perceive in it, a finger of that Almighty hand which has been so frequently and signally extended to our belief in the critical stages of the revolution.” The Federalist No. 37. Indeed, the Constitution’s adoption was the people’s acceptance of a moral view of government. The right and natural sovereign authority the Constitution provides for these United States, as a part of that moral view, ought not to be disturbed. It is apparent throughout The Federalist that the United States Constitution was written with a particular view in mind of ordinary principles of causality–that certain motives and opportunities of constituent interests ought (in view of the nature of man) to be treated by certain forms of government. The judicial submission of the people of the United States to an international rule of decision to which the people’s elected representatives in Congress have not on their own submitted them is no part of those Constitutional principles. ***
The Constitution’s delicate balance reflected the Founders’ views that there is both “a degree of depravity in mankind which requires a certain degree of circumspection and distrust” but also other qualities “which justify a certain portion of esteem and confidence.” The Federalist No. 55, (James Madison). The Constitution gives no indication that the people intended under these truths to grant ultimate power to those who would divine law from the statements and resolutions of non-representative international bodies. The people ceded only those natural rights which any people must cede so as to vest a necessary government with adequate powers, The Federalist No. 2 (John Jay), with those powers yet limited by “the transcendent law of nature and of nature’s God . . . to which all such institutions must be sacrificed,” The Federalist No. 43 (James Madison)…. ***
This Court should, therefore, reject Petitioner’s invitation to anoint the ICJ’s judicial promulgation as the Supreme Law of this Land. Failure to do so does nothing less than surrender the sovereignty of the United States to an international tribunal and ignores the right of the people to govern.